Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Reviewed by Professor Marin Roger Scordato

In 1922, Charles Grove Haines, a political scientist, wrote, “American courts have clung to the belief that justice must be administered in accordance with fixed rules, which can be applied by a rather mechanical process of logical reasoning to a given state of facts and can be made to produce an inevitable result.” Seventy-five years later, Frederick Schauer, a professor of law, wrote, “To the Legal Realist, rules serve not as sources of ex ante guidance, but as vehicles of ex post legitimation of decisions reached without regard for the rules.” These quotes are illustrative of the classic divide between what has generally come to be called legal formalism and legal realism.

In his new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Brian Tamanaha, a professor of law at the Washington University School of Law in St. Louis, seeks to demonstrate that this conventional account of a radical change in the understanding of the nature of common law jurisprudence from formalism to realism in the 1920s and 1930s is profoundly wrong. This effort follows years of excellent work in this area by Professor Tamanaha, including his 2006 book, Law as a Means to an End: Threat to the Rule of Law, and his 2004 book, On the Rule of Law: History, Politics, Theory.